Appoint Public Defenders to Federal and State Courts

By: Pete Johnson

Every public defender—whether  young or seasoned—knows the story of Clarence Earl Gideon, an indigent Florida defendant who hand-wrote a note to America’s highest court declaring that he had a right to an attorney.[1] Gideon’s inspirational story led to the landmark Supreme Court decision of Gideon v. Wainwright, in which the Court ruled that Gideon’s 6th Amendment constitutional rights were violated when he was refused an attorney by a state court under charge of a felony.[2] While the Court has since continued to develop intricate doctrine with regards to when the 6th amendment attaches to a defendant, the point is relatively simple: the right to an attorney in a criminal prosecution is fundamental.[3] The Gideon decision was revolutionary, and can easily be considered among the most imperative Supreme Court decisions of the 20th Century. This decision led to the need of a new type of lawyer: the public defender.

Public defenders are charged with the duty of representing indigent persons accused of crimes because having strong legal representation is “essential to a fair trial.”[4] As a result, criminal defense attorneys are often seen as a “romantic figure,” and having wide-spread appeal due to their noble profession.[5] Despite Gideon’s resounding effect on our legal system, and the public’s admiration of the criminal defense attorney, public defenders still face many challenges. For one, public defenders seldom become judges, especially at the federal level. According to a 2016 study conducted by Alliance for Justice, approximately 86% of President Obama’s nominees to the Federal Judiciary, up that point, were either prosecutors or corporate attorneys or both.[6] More starkly, only 5 of the 64 Obama Circuit Court of Appeals nominees practiced as public defenders in either state or federal courts.[7] Furthermore, looking to the entire group of current federal district court judges, only 45 have been public defenders.[8] Of the federal court of appeals judges, only 5 current judges have practiced as public defenders, while in contrast 24 have been prosecutors.[9] It is clear that there is a huge disparity between public defenders and other types of attorneys.

A truly diverse judiciary is not one that only reflects demographics, but also one that reflects professional experiences. Judges craft laws that penetrate nearly every single aspect of our lives. It is therefore imperative that the individuals who sit on the judiciary have been advocates for clients across all socioeconomic backgrounds, and well as been exposed to a wide-range of legal issues. Judges are human beings, after all, and therefore make decisions based on personal experiences. If we are to truly enhance judicial decision-making, then it logically follows that we ought to nominate individuals who have dealt with issues facing the poor, from both sides of our adversarial system. Appointing more public defenders to the bench would improve judicial decision-making and enhance judicial culture, because it would bring a perspective that considers the poor criminal defendant when deciding law, a perspective that currently seems largely underrepresented.

[1] See Gideon v. Wainwright, 372 U.S. 335, 338 (1963).

[2] Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963).

[3] Gideon v. Wainwright, 372 U.S. 335, 344 (1963)(“ The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”).

[4] Gideon v. Wainwright, 372 U.S. 335, 340 (1963).

[5] Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J. 1179, 1179 (1974).

[6] Broadening the Bench: Professional Diversity and Judicial Nominations, Alliance for Justice, https://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf (last visited Feb. 24, 2019).

[7] Broadening the Bench: Professional Diversity and Judicial Nominations, Alliance for Justice, https://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf (last visited Feb. 24, 2019).

[8] Broadening the Bench: Professional Diversity and Judicial Nominations, Alliance for Justice, https://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf (last visited Feb. 24, 2019).

[9] Broadening the Bench: Professional Diversity and Judicial Nominations, Alliance for Justice, https://www.afj.org/wp-content/uploads/2014/11/Professional-Diversity-Report.pdf (last visited Feb. 24, 2019).

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